WIMCO LTD., MUMBAI V. ACIT-CIR-2(3), MUMBAI

ITA 2818/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0535 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 27-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Assessee Lawyers: K K VED
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 2818/MUM/2016 ASSESSMENT YEAR: 2006 - 07 WIMCO LTD. INDIAN MERCANTILE CHAMBERS KAMANI MARG, BALLARD ESTATE MUMBAI - 400028 VS. ACIT - 2(3) AAYAKAR BHAVAN, MAHARSHI KARVE MARG, MUMBAI - 400020 PAN NO. AAACW3082B APPELLANT RESPONDENT ASSESSEE BY : MR. K.K. VED, AR REVENUE BY : MR. V. VIDHYADHAR , DR DATE OF HEARING : 25 /01/2018 DATE OF PRONOUNCEMENT : 30/01/2018 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2006 - 07 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 6 , MUMBAI AND ARISES OUT OF THE ORDER PASSED BY THE ASSESSING OFFICER (AO) U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE BACKGROUND OF THE PRESENT APPEAL IS THAT THE ASSESSEE HAD FILED AN APPEAL AGAINST TH E ORDER PASSED BY THE AO U/S 143(3) DATED 16.12.2008. THE SAID APPEAL WAS DISMISSED BY THE CIT(A). ON FURTHER APPEAL, THE ITAT VIDE ITS ORDER DATED 17.04.2013 IN ITA NO. 232/MUM/2011 SE T ASIDE THE ORDER OF THE CIT(A) AND RESTORED THE WIMCO LTD. ITA NO. 2818/MUM/2016 2 MATTER BACK TO HIM FOR PASSING A FRESH ORDER ADJUDICATING THE VARIOUS DISPUTES RAISED ,AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT(A) HAS PASSED AN ORDER DATED 15.01.2016 ON THE BASIS OF MATERIALS AVAILABLE ON RECORD AS THE ASSESS EE FAILED TO APPEAR BEFORE HIM. 3. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT WHILE ADJOURNMENTS WERE SOUGHT FOR BY THE ASSESSEE ON ACCOUNT OF THE FACT THAT THE DATA WHICH PERTAINED TO THE YEAR UNDER CONSIDERATION WAS NOT AVAILABLE , ON THE LA ST OF THE OCCASION I.E. ON 2 ND DECEMBER 2015, THE REPRESENTATIVE OF THE ASSESSEE WAS INFORMED THAT A FRESH NOTICE RE - FIXING THE HEARING WILL BE ISSUED. HOWEVER, NO SUCH NOTICE WAS ISSUED. HE FILES A COPY OF THE PROCEEDING SHEET IN THIS REGARD. IT IS STATED BY HIM THAT THE CIT(A) HAS WRONGLY MENTIONED IN HIS ORDER THAT A NOTICE DATED 23 RD DECEMBER 2014 WAS ISSUED FIXING THE CASE FOR HEARING ON 14 TH JANUARY 2016 . 4. ON THE OTHER HAND, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). IT IS STATED BY HI M THAT THOUGH ADEQUATE OPPORTUNITY AND SUFFICIENT TIME WAS GIVEN BY THE LD. CIT(A), NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE AVAILED IT. THE LD. DR THUS SUBMITS THAT THE LD. CIT(A) HAS RIGHTLY PASSED THE ORDER ON THE BASIS OF AVAILABLE MATERI ALS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE HAVE GONE THROUGH THE PHOTOCOPY OF THE PROCEEDING SHEET MAINTAINED IN THE OFFICE OF THE CIT(A) IN THE PRESENT CASE FILED BY THE LD. COUNSEL OF THE ASSESSEE. WE FI ND THAT AS PER THE RECORDING THEREIN DATED 02.12.2015, IT IS MENTIONED THAT VSK WIMCO LTD. ITA NO. 2818/MUM/2016 3 APPEARED AND FILED THE ADJOURNMENT LETTER DATED 02.12.2015. THE AO WILL SEND A NOTICE. WE ALSO FIND THAT THE LD. CIT(A) HAS STATED AT PAGE 2 OF HIS ORDER DATED 15.01.2016 TH AT ANOTHER OPPORTUNITY OF HEARING WAS GIVEN VIDE NOTICE DATED 23.12.2014 POSTING THE CASE FOR HEARING ON 14.01.2016. HOWEVER, NOBODY HAS ATTENDED. IN VIEW OF THE ABOVE UNCLEAR POSITION OF FACTS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) DATED 15.01.2016 AND RESTORE THE MATTER TO HIM TO PASS AN ORDER AFRESH AS PER THE ORDER OF THE ITAT DATED 17.04.2013 IN ITA NO. 232/MUM/2011. WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) ON THE DATE TO BE FIXED FOR HEARING AND FILE THE RELEVANT DOCUMENTS/EVIDENCE. NEEDLESS TO SAY THE LD. CIT(A) WOULD GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE FINALIZING THE APPELLATE ORDER. 6. IN THE RE SULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/2018 SD/ - SD/ - (D.T. GARASIA) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 30/01/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI